Khan v Secretary of State for the Home Department

A statutory tribunal should ordinarily determine, at first instance, whether it has jurisdiction over an asserted statutory appeal. That remains so where the jurisdictional question involves public-law issues or disputed primary facts. Judicial review in the Upper Tribunal will normally be refused where an appeal to the First-tier Tribunal provides an effective alternative remedy.

That general position is discretionary. Exceptional procedural circumstances, including a late alternative-remedy objection after permission has been granted and a prolonged, established but mistaken procedural route, may require the Upper Tribunal to determine the issue. A re-submission of an application rejected as invalid need not be a distinct application for the purposes of section 3C of the Immigration Act 1971.

The appellant, a Pakistani national, sought leave to remain following earlier student leave. An application made while his leave was current was rejected for non-payment of a fee. A later application was refused on its merits, with a notice stating that there was no right of appeal.

He brought judicial review proceedings in the Upper Tribunal. He contended that an earlier outstanding application, or alternatively the allegedly unlawful rejection of the fee application, had extended his leave under section 3C of the Immigration Act 1971. If so, he had a statutory appeal against the later refusal. UTJ O’Connor dismissed the claim because the First-tier Tribunal should decide that jurisdictional issue, and awarded costs to the Secretary of State.

The central issue was whether the judicial review should nevertheless have been determined in the Upper Tribunal.

1. Appeal allowed on grounds 3 and 5. The court remitted the jurisdiction issue and the costs of the judicial review proceedings to the Upper Tribunal. Lord Justice Gross agreed with Lord Justice Underhill.

2. The challenge to Basnet was rejected. Sections 3C(4) and 3C(5) of the Immigration Act 1971 did not prevent the analysis in Basnet. Where the second document is simply a re-submission of the original application, it is not a distinct application for section 3C purposes. The fact that the Secretary of State framed a decision letter as responding to the re-submission did not alter that conclusion.

3. Ordinarily, an applicant asserting a statutory right of appeal must initiate an appeal in the First-tier Tribunal. That tribunal may determine its own jurisdiction and then, if it has jurisdiction, determine the substantive appeal. This was the proper application of the alternative-remedy principle. The First-tier Tribunal was also well placed to resolve disputed primary facts, and public-law questions arising in the jurisdictional inquiry were not unsuitable for it.

4. If a decision notice wrongly states that no appeal lies, its defect may be waived by the applicant. An applicant who appeals loses nothing of value by waiving the objection to the notice. If the statutory appeal exists, the First-tier Tribunal can allow it as not in accordance with the law under section 84(1)(e) of the Nationality Immigration and Asylum Act 2002.

5. The Upper Tribunal nevertheless exercised its discretion wrongly in declining to decide this particular claim. Permission had been granted after an oral hearing at which the Secretary of State raised no alternative-remedy objection. The objection was raised by the tribunal only at the expected substantive hearing; similar cases had proceeded by judicial review without objection; the Secretary of State’s own notice denied an appeal; and the proceedings had already endured substantial delay. Those cumulative and exceptional circumstances meant that the Upper Tribunal should have determined the jurisdiction issue. The remittal was confined to that unusual history and did not displace the ordinary First-tier Tribunal route.

• Court of Appeal (Civil Division) — Allowed the appeal on grounds 3 and 5, set aside the costs decision, and remitted the jurisdiction issue and costs to the Upper Tribunal: [2017] EWCA Civ 424.
• Upper Tribunal (Immigration and Asylum Chamber) — On 15 June 2015, UTJ O’Connor dismissed the judicial review on the ground that an appeal to the First-tier Tribunal was an effective alternative remedy, and awarded the Secretary of State costs.